Balcony struck down by High Court

A dispute over a 5 square metre balcony is probably the most expensive balcony feud ever in Australia. The High Court recently ruled in a dispute between the owner of a property and the body corporate itself. The owner of the property wanted approval from the body corporate to allow the owner to build an additional balcony between his two existing balconies in a Noosa Heads complex. This change would have effectively granted the property owner additional property, albeit common air space, for the property.

The rules and the body corporate legislation require that any change to a property that takes away body corporate property requires unanimous consent of all of the members of the body corporate before it can happen. In 2012 the body corporate members unanimously agreed to deny the balcony upgrade, sparking the property owner to try and overturned that decision through the courts. The property owner went through the appeals process before ending up in the High Court.

In the High Court, the property owner argued that it was unreasonable of the body corporate to not allow the extension of the balcony. However, the High Court ruled that it was not unreasonable that the motion to deny the balcony upgrade was unreasonable.

The fight, which reportedly cost the parties somewhere in the order of $500,000.00, now means that body corporates will know that such changes can be blocked and gives certainty to the way that the courts in Queensland will interrupt these disputes. It is also a good lesson for people considering entering litigation; now the property owner has been left to foot a hefty legal bill all over his attempt to create a bigger boundary on his property.

At Streten Masons Lawyers we can assist your clients in all types of legal disputes – particularly body corporate disputes. Heading into expensive litigation processes can be incredibly costly for your business so getting advice is the best thing to do. Contact one of our lawyers today on (07) 3667 8966 or info@smslaw.com.au to find out how we can assist your clients.

Do I Need Workplace Policies and Procedures?

The checklist to start and run a successful business can sometimes be intimidating. Sorting your priorities to get the business running can be tedious when you’re eager to start. Similarly, finding time to improve your business can burdensome when you’re up and running.

However, it is crucial that if your business has staff that you obtain and implement Workplace Policies and Procedures documents to save your business time and money.

Although there are almost innumerable reasons why your business should have workplace policies and procedures, some of the most important and practical reasons from a legal perspective are as follows.

Health and Safety Matters:

Perhaps the most common reason for employers implementing workplace policies and procedures is to ensure that they provide a safe workplace as required by workplace health and safety legislation.

It can be difficult for businesses, particularly growing businesses, to manage health and safety risks for their employees. Providing and implementing specific policies and procedures which requires and empowers employees to self-identify hazards is both critical and necessary.

When an incident occurs in the workplace it can be very difficult for an employer to distance themselves from that occurrence; therefore prevention is the key.

Protect against unfair dismissal claims:

Business owners seldom have time to keep up to date with and deeply understand complex industrial relations laws to ensure they are not exposed to unfair dismissal claims.

An employment law Solicitor can assist you to obtain clear expectation guidelines and processes/procedures which provide a clear framework for your business to implement, making the process much simpler.

Sometimes employers implement these procedures after an unfair dismissal claim is made and by then it has already cost them thousands.

Ideally, if the expectation guidelines, processes and procedures are followed correctly, your business can reduce exposure to liability for unfair dismissal claims.

Protect against other employment claims:

There are an almost infinite number of matters that your business can be held liable for; this includes both claims by an employee and/or third party because in relation to the actions of an employee in the course of their employment.

You can reduce your exposure by having specific policies and procedures, including grievance procedures in relation to:

sexual harassment;

workplace bullying;

discrimination; and

racial, religious or other vilification.

Make your business more efficient:

You might be surprised how much more can be achieved when employees have additional certainty regarding their roles and do not need to interrupt management for advice.

In addition, bringing on new employees will be made easier and you are more likely to retain valuable knowledge when an employee leaves because it has been documented in the procedures.

Spending money in the short term can save your business money in the long run by investing in workplace policies and procedures; plus it will add to the value of your business once you decide to sell.

We recommend that you call us at (07) 3667 8966 or email info@smslaw.com.au for advice regarding drafting and implementing policies and procedures for your business.

What You Really Need to Know about the Court Process…

A common question that clients ask us when we first meet to discuss their options relating to a dispute is what exactly does legal action – or the court process – involve. The answer to that is that it depends entirely on the scenario.

In particular, the type or nature of the legal dispute often determines the court in which legal action is commenced, and flowing from that the path which those proceedings follow. However, a particularly common scenario we encounter are disputes over outstanding monies which are generally heard in the State Courts (as opposed to Federal Courts).

Monetary Jurisdiction of the Courts of Queensland

Clients often come to us explaining that they are either owed money by a debtor, or another party is claiming they are owed money and have already commenced proceedings or are threatening to do so.

In both instances, one of the first questions we will ask the client is how much? The reason for this is that broadly speaking there are three levels of courts in Queensland of increasing rank, these being:

The Magistrates Court

The District Court

The Supreme Court

In relation to monetary disputes these courts have financial jurisdiction limits. The effect of which is that the size of amount in dispute determines the court in which that dispute is heard. Generally the costs of legal action increase in accordance with the seniority of the court in which the matter is determined, this can have significant cost implications for clients.

While the monetary jurisdiction limits are subject to change, currently they are:

Magistrates Court: less than $150,000.00

District Court: between $150,000.00 to $750,000.00

Supreme Court: anything in excess of $750,000.00

To complicate matters further the nature of the dispute or the relief sought can affect the court in which proceedings should be commenced. The nature of the disagreement may be different to the court which appears to have jurisdiction due to the amount in dispute. Also where a dispute relates to property often the monetary limit will be determined by the value of the property that is in dispute.

The Legislation

In any event, as a result of a piece of legislation called the Uniform Civil Procedure Rules (or UCPR for short), once proceedings have been commenced the procedure as to how the litigation is to be conducted is fairly consistent between the courts.

The UCPR sets out how proceedings are to be commenced, the form that those proceedings are to take, and what each party is required to do, and when.

The Pleading Stage

While, depending on the circumstances, proceedings may be commenced by either an Originating Application or a Claim and Statement of Claim, in the case of monetary disputes the Claim and Statement of Claim is far more common.

A Statement of Claim sets out the Plaintiff’s case and why they are entitled to the relief set out in the Claim; in this instance the amount of money claimed.

The Plaintiff in the proceedings will file their Claim and Statement of Claim with the appropriate court and then serve those documents on the Defendant(s).

The Defendant must then file and serve a Defence within the prescribed time limits. Should the Defendant also determine they have a Claim for money against the Plaintiff they may file and serve a Counter Claim with the Defence.

The Plaintiff may then elect to file and serve a Reply, or if the Defendant has made a Counter Claim, a Reply and Answer, addressing the matters raised by the Defendant in their pleadings.

At this point, should no amendments be made and no further responses be exchanged between the parties, pleadings will close.

Alternatively, one or both of the Parties may determine the documents currently filed and served by the other party do not sufficiently describe or establish their case. To obtain these details a request for what is called Further and Better Particulars is made, this sets out the claimed deficiencies and seeks additional information.

The consequences of not complying with a request for Further and Better Particulars can be severe, including, ultimately, having pleadings struck out.

Should a Defence not be filed within the prescribed time limit, the Plaintiff may proceed to seek Default Judgment against the Defendant. This dispenses with the need for (and cost of) a trial and allows the matter to be decided in the Plaintiff’s favour simply by fact that the Defendant has not defended the proceedings.

Disclosure and Settlement Conference or Mediation

Unless a particular document is protected by an exception (for example if it is a privileged legal document), if it is relevant to the matter and in the possession of that party, they must advise the other side of that document. This is what is known as the duty of disclosure.

Therefore, once pleadings have closed, the party’s exchange a ‘List of Documents’ to comply with this duty. The Parties may then require that the other side produce copies of any documents noted on their List of Documents for inspection.

Before or after disclosure the matter is often (or in the case of the Magistrates Court, must be) referred to some form of Mediation. In the Magistrates Court this takes the form of a Settlements Conference with the assistance of the court, while in the higher courts the meditation is arranged by the parties outside of the Courts.

Regardless, the end result is that an impartial mediator attempts to assist the parties to arrive at some form of commercial resolution. Where this is not possible the final stage is to request that the matter be set down for a trial.

Trial

The final, and normally by a significant margin, most expensive stage in the legal process is a trial to resolve the matter.

Simply put, the parties put their case and supporting material to a Judge or Magistrate who then makes a determination.

Proceeding to a trial can be a burden (both on finances and time) on both parties, as counsel will often need to be engaged both to prepare for, and appear at, the Trial. Further the trial may run for a number of days and the parties themselves may often be required to give oral evidence, requiring considerable time away from their employment.

The end result of a trial will be that one party wins and the other loses, this can have significant cost consequences for the losing party. However, even when a party is successful in prosecuting a case to final judgment, generally any order for costs will not cover the entirety of their legal costs.

Enforcement

Finally, it does not necessarily follow that once an order in made in the client’s favour, payment will be made by the unsuccessful party. Often it will prove necessary to commence further proceedings, or take further actions, to enforce the judgment.

Depending on the unsuccessful party, this may take the form of Statutory Demands, Bankruptcy Notices or enforcement warrants.

If you require advice regarding prospects or options for commencing proceedings, or if proceedings have been commenced against you and you need advice on you options to defend those proceedings Streten Masons Lawyers can provide advice on all stages of the court process. Please contact us on 07 3667 8966 to make an appointment with one of our expert solicitors.

The old saying a bird in the hand is worth two in the bush has particular application when forced to decide on whether or not to compromise in legal disputes.

All too frequently the aggrieved parties – having lived and experienced the dispute – are adamant that their legal position is clear and obvious to all. They think that should the matter need to be decided by a judge they will be vindicated and they will ultimately be shown to be right.

As a result, one or both of the parties in a legal dispute will at one point or another need to perform a dispassionate cost benefit analysis of settling the matter early, or proceeding with legal action. Often this requires hard decisions as to the benefit of receiving (or providing) certain payments at an agreed date, rather than at an indeterminate point in the future if they proceed to court. This must be weighed against the inherent uncertainty of litigation.

While no two disputes are identical, and each has its own unique facts or causes, there are three key considerations that should be at the forefront of both parties’ minds when deciding on whether to compromise, and if so to what extent:

How long will it take to resolve this matter if it does not settle?

How much will it cost to continue and if necessary commence or continue legal action?

What are the chances of the other party prevailing and the consequences?

While the above factors can apply to any settlement negotiation, they take on particular importance in circumstances where proceedings have been commenced.

In particular it is important to appreciate that court proceedings where contested and not settled early may take years to resolve. As a consequence of this, almost without exception, legal costs will continue to be incurred as the matter works its way through the various stages of litigation.

It may be that the above vindication is ultimately obtained in the form of a court judgment. Ordinarily costs will follow the event, meaning the unsuccessful party pays the successful parties costs; it is unlikely that such an order will cover all of the expenses the successful party has incurred.

Where the dispute concerns the repayment of outstanding monies, the risk of either liquidation or bankruptcy of the other party remains an ever present danger.

Ultimately, settling a matter is an exercise in trying to put a dollar value on chance. What is the likelihood of an adverse outcome to the litigation and what figures do you assign to that chance? This number is then weighed against the value assigned to concluding early.

At Streten Masons Lawyers we take a practical and commercial view to resolving disputes; we understand that in some instances litigation is the only way forward while in others negotiation will result in the best outcome for the client. We have experience in both proceeding to judgment and settling matters early and provide expert advice on the best course of action. If you are experiencing an issue and need litigation matters sorted, please email Jeremy at Jeremy@smslaw.com.au or call us at 07 3667 8966.

By Jeremy Streten

Buy 1 Give 1

Streten Masons Lawyers are a proud partner of the ‘Buy 1, Give 1’ program, which links businesses to a number of global aid programs across the world.